A court can exercise its discretion to dismiss a suit under Order 7, Rule 11 C.P.C. only if the suit is frivolous or vexatious.

1. - The petitioner (defendant) has invoked the revisional jurisdiction of this Court enshrined under Section 115 of the Code of Civil Procedure (for short 'C.P.C.') with a prayer for besetting the impugned order Annex.4 dated 16.8.2012 passed by the learned Addl. Civil Judge Or. Div.) No. 26 (Sanganer), Jaipur Metropolitan, Jaipur.

2. The facts essential for the purpose of this revision petition are that the first non-petitioner-plaintiff filed a suit for declaration and perpetual injunction against the present petitioner and the proforma non-petitioner Nos. 2 and 3 respectively. The lis involved in the suit was with respect to a land situated towards eastern side of Nohra land in the nature of strip of land, on which according to the non-petitioner-plaintiff he is in possession for last so many years and enjoying possession of the said property since the lifetime of Late Durga Prasad, i.e. father of the petitioner. The non-petitioner-plaintiff has also averred that for allotment of the same as a strip of land, he has undertaken all the formalities including depositing requisite amount with the Municipal Board, Sanganer and the allotment as strip of land was made to the non-petitioner- plaintiff by the Municipal Board in accordance with law. The non-petitioner- plaintiff has further averred in the plaint that after death of Shri Durga Prasad, his elder son i.e. the petitioner has become inimical to him and with some ulterior motive, he has opened a door on the wall which was facing the Nohra. The non- petitioner-plaintiff further asserted that the said door in fact is not useful for the petitioner but the sole object behind opening of this door is to harass the non- petitioner-plaintiff. In the year 2005, when the non-petitioner-plaintiff started construction on a land on which he is having right, title and interest, the petitioner started creating hinderance and in these circumstances the suit was filed by the non-petitioner-plaintiff against the petitioner but the same was dismissed by the trial Court and appeal against the said judgment and decree is pending adjudication. As per the version of the non-petitioner-plaintiff in the plaint, the petitioner-defendant has started harassing the non-petitioner-plaintiff and has also made an abortive attempt to encroach over the land of the non- petitioner-plaintiff and therefore, it has become imperative for the non-petitioner- plaintiff to seek a declaration about his title over the land in question and further to seek a decree for perpetual injunction.

3. The petitioner on receiving the summons from the Court, made an endeavour before the learned trial Court to persuade it for dismissal of the suit by filing an application under Order 7, Rule 11 C.P.C. In the application, the petitioner has mentioned with clarity and precision that the suit which was earlier filed by the non-petitioner-plaintiff was confined to the relief of perpetual injunction only and no relief of declaration was sought by him and therefore, the present suit, which is also pertaining to the same property, is barred by order 2 Rules 2 and 3 C.P.C. That part, the petitioner has also raised the issue of limitation inasmuch as in the application it was pleaded by the petitioner that the suit for declaration and perpetual injunction filed by the non-petitioner-plaintiff is barred by limitation by virtue of Articles 58 and 113 of the Limitation Act, 1963. The objection about res judicata, as envisaged under Section 11 C.P.C. was also raised in the application.

4. The application filed by the petitioner was contested by the non-petitioner- plaintiff and a detailed reply was submitted denying all the allegations. In his reply, the non-petitioner-plaintiff has stated that the subject matters of both the suits are different and the parties to the dispute are also different. That apart, the non-petitioner-plaintiff has also averred that the subsequent suit was filed by the non-petitioner-plaintiff on account of acc